Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 (6 of 2013)
Schedule 1 Criminal Code amendments
Criminal Code Act 1995
38 After section 271.7
Insert:
Subdivision BA - Organ trafficking
271.7A Removal of organs contrary to this Subdivision
The removal of a person’s organ is contrary to this Subdivisionif:
(a) the removal, or entering into an agreement for the removal, would be contrary to the law of the State or Territory where it is, or is to be, carried out; or
(b) neither the victim, nor the victim’s guardian, consents to the removal, and it would not meet a medical or therapeutic need of the victim.
271.7B Offence of organ trafficking - entry into and exit from Australia
Entry into Australia
(1) A person (the offender ) commits an offence of organ trafficking if:
(a) the offenderengages in conduct consisting of the organisation or facilitation of the entry or proposed entry, or the receipt, of another person (the victim ) into Australia; and
(b) the offenderis reckless as to whether the conduct will result in the removal of an organ of the victim contrary to this Subdivision, by the offender or another person, after or in the course of that entry or receipt.
Penalty: Imprisonment for 12 years.
Note: For when the removal of an organ is contrary to this Subdivision, see section 271.7A.
Exit from Australia
(2) A person (the offender ) commits an offence of organ trafficking if:
(a) the offender engages in conduct consisting of the organisation or facilitation of the exit or proposed exit of another person (the victim ) from Australia; and
(b) the offender is reckless as to whether the conduct will result in the removal of an organ of the victim contrary to this Subdivision, by the offender or another person, after or in the course of that exit.
Penalty: Imprisonment for 12 years.
Note: For when the removal of an organ is contrary to this Subdivision, see section 271.7A.
271.7C Organ trafficking - aggravated offence
(1) A person (the offender ) commits an aggravated offence of organ trafficking if the offender commits an offence of organ trafficking in relation to another person (the victim ) and any of the following applies:
(a) the victim is under 18;
(b) the offender commits the offence intending that an organ of the victim will be removed contrary to this Subdivision, either by the offender or another person:
(i) if the offence of organ trafficking is an offence against subsection 271.7B(1) - after or in the course of entry into Australia; or
(ii) if the offence of organ trafficking is an offence against subsection 271.7B(2) - after or in the course of exit from Australia;
(c) the offender, in committing the offence, subjects the victim to cruel, inhuman or degrading treatment;
(d) the offender, in committing the offence:
(i) engages in conduct that gives rise to a danger of death or serious harm to the victim or another person; and
(ii) is reckless as to that danger.
Penalty:
(a) if this subsection applies because the victim is under 18 - imprisonment for 25 years; or
(b) in any other case - imprisonment for 20 years.
Note: For when the removal of an organ is contrary to this Subdivision, see section 271.7A.
(2) If, on a trial for an offence against this section, the court, or if the trial is before a jury, the jury, is not satisfied that the defendant is guilty of the aggravated offence, but is satisfied that he or she is guilty of an offence against section 271.7B, it may find the defendant not guilty of the aggravated offence but guilty of an offence against that section.
(3) Subsection (2) only applies if the defendant has been afforded procedural fairness in relation to the finding of guilt for the offence against section 271.7B.
Note: Section 271.7B provides for offences of organ trafficking.
271.7D Offence of domestic organ trafficking
A person (the offender ) commits an offence of domestic organ trafficking if:
(a) the offender engages in conduct consisting of the organisation, or facilitation, of the transportation or proposed transportation of another person (the victim ) from one place in Australia to another place in Australia; and
(b) the offender is reckless as to whether the conduct will result in the removal of an organ of the victim contrary to this Subdivision, by the offender or another person, after or in the course of that transportation.
Penalty: Imprisonment for 12 years.
Note: For when the removal of an organ is contrary to this Subdivision, see section 271.7A.
271.7E Domestic organ trafficking - aggravated offence
(1) A person (the offender ) commits an aggravated offence of domestic organ trafficking if the offender commits an offence of domestic organ trafficking in relation to another person (the victim ) and any of the following applies:
(a) the victim is under 18;
(b) the offender commits the offence intending that an organ of the victim will be removed contrary to this Subdivision, either by the offender or another person, after arrival at the place to which the person has been transported, or in the course of transportation;
(c) the offender, in committing the offence, subjects the victim to cruel, inhuman or degrading treatment;
(d) the offender, in committing the offence:
(i) engages in conduct that gives rise to a danger of death or serious harm to the victim or another person; and
(ii) is reckless as to that danger.
Penalty:
(a) if this subsection applies because the victim is under 18 - imprisonment for 25 years; or
(b) in any other case - imprisonment for 20 years.
Note: For when the removal of an organ is contrary to this Subdivision, see section 271.7A.
(2) If, on a trial for an offence against this section, the court, or if the trial is before a jury, the jury, is not satisfied that the defendant is guilty of the aggravated offence, but is satisfied that he or she is guilty of an offence against section 271.7D, it may find the defendant not guilty of the aggravated offence, but guilty of an offence against that section.
(3) Subsection (2) only applies if the defendant has been afforded procedural fairness in relation to the finding of guilt for the offence against section 271.7D.
Note: Section 271.7D provides for offences of domestic organ trafficking.
Subdivision BB - Harbouring a victim
271.7F Harbouringa victim
(1) A person (the offender ) commits an offence of harbouring a victim if:
(a) the offender harbours, receives or conceals another person (the victim ); and
(b) the harbouring, receipt or concealing of the victim:
(i) assists a third person in connection with any offence committed by the third person (the third person offence ); or
(ii) furthers a third person’s purpose in relation to any offence committed by the third person (the third person offence ); and
(c) the third person offence is an offence against this Division (apart from this section) or Division 270.
Penalty: Imprisonment for 4 years.
(2) Recklessness applies in relation to paragraph (1)(b).
(3) Absolute liability applies in relation to paragraph (1)(c).
(4) A person may be found guilty of an offence against subsection (1) even if the third person has not been prosecuted for, or has not been found guilty, of any other offence.
271.7G Harbouringa victim - aggravated offence
(1) A person (the offender ) commits an aggravated offence of harbouring a victim if:
(a) the offender commits an offence of harbouring a victimin relation to another person (the victim ); and
(b) the victim is under 18.
Penalty: Imprisonment for 7 years.
(2) If, on a trial for an offence against this section, the trier of fact is not satisfied that the defendant is guilty of the aggravated offence, but is satisfied that the defendant is guilty of an offence against section 271.7F, it may find the defendant not guilty of the aggravated offence, but guilty of an offence against that section.
(3) Subsection (2) only applies if the defendant has been afforded procedural fairness in relation to the finding of guilt for the offence against section 271.7F.
Note: Section 271.7F provides for the offence of harbouring a victim.